S K NINGAPPA Vs. PUTTAPPA

JUDGEMENT

(1.) THIS is a defendant's appeal having suffered a decree for permanent injunction sought by the plaintiffs in O.S. 6/1979 on the file of the Munsiff at Tharikere. The appeal prosecuted by the defendant before the learned Civil Judge at Tharikere in R.A. 33/1983 was unsuccessful. Therefore, the present appeal under Section 100 of C.P.C. In the course of this Order, the parties will be referred to by the ranks assigned to them in the trial Court. The plaintiff filed the suit seeking a permanent injunction restraining the defendant from interfering with his lawful possession as he had purchased the suit schedule land under Exhibit P2 from one Maheswarappa, his previous vendor and previous owner. Maheswarappa himself had got the land by a deed of sale as per Exhibit P1 which was the result of compromise in a suit for specific performance filed by the said Maheswarappa against the defendant. Defendant failed to execute the sale deed. Therefore, the sale deed as at Exhibit P1 was executed by a Commissioner appointed by the Court. Some three months thereafter he sold the land to plaintiff. Defendant admitted that O.S. 92/74 was filed by him against one Nijalingappa and one S.K. Maheswarappa. He also admitted in his written statement that in that suit, a compromise decree was passed. (Counsel for appellant submits that it was Nijalingappa and Maheswarappa who had filed the suit. It does not matter as the result of the suit ended in a compromise decree in favour of Maheswarappa). He admitted that the property was purchased by Maheswarappa on 1-3-1978. But he, however, contended that Maheswarappa was not put in possession of the suit schedule property by the Court Commissioner. That the decretal amount of Rs. 3,900/- was not paid to the defendant and Nijalingappa and proceedings in Miscellaneous Case 17 of 1976 under Order 21, Rules 2 and 15 of the C.P.C. was illegal and collusive. Maheswarappa had derived no right or title over the suit property which was sold to him by this defendant. As per sale deed executed by Maheswarappa in the year 1971 in favour of the defendant and Nijalingappa would go to show that defendant and S.B. Nijalingappa were in joint possession of the suit land. Maheswarappa got the original Suit 122 of 1978 dismissed on 31-8-1978. Therefore, Execution Proceedings 93/1977 and execution of the sale deed were illegal, invalid and not binding on the defendant. No notice of Execution 93 of 1977 and Mis. 17 of 1976 were served upon the defendant. He also denied that the plaintiff had purchased the suit land. On such pleadings, the only two issues which the trial Court framed were: (1) Whether the plaintiff proves his lawful possession of the suit property? (2) Whether the plaintiff proves the constructions alleged? On both the issues, it found in favour of the plaintiff in the affirmative. The lower appellate Court has sustained the Judgment and decree of the trial Court. In this Court, Mr. Lingappa only contended that possession was with the appellant-defendant in the trial Court. He had never parted with possession despite the execution of the sale deeds Exhibits P1 and P2. He argued, that the Courts-below were in error in drawing a presumption that Exhibits P1 and P2, the two sale deeds had deprived the defendant of his possession when Exhibit P1 itself was a sale deed executed by a Court Commissioner, who could not have put anybody in possession muchless, the purchaser. In that circumstances, sale by such purchaser through a sale deed executed by the Court Commissioner, could not be conclusive evidence of possession. On the same analogy and reasoning, the subsequent purchaser-plaintiff could not have obtained possession on the sale deed executed by Maheswarappa the purchaser, from the Court. I do not think there is much force in that argument. Presumption in law is that possession goes with ownership. To rebut that presumption, he must place material before the Court to the contrary. Though defendant has led evidence both oral and documentary in support of his case, he did not lead any positive evidence to show his possession. From the evidence, he led both oral and documentary, he wanted the Courts-below to infer that he had not parted with possession. The trial Court has considered his own evidence in which he had admitted that he was in joint possession of the suit schedule property with one Nijalingappa and they were in possession as such for a period of seven years till 1977. Afterwards, there was no other evidence to prove his subsequent possession. If he was in possession, the best evidence of his possession was the Record of Rights or R.T.C. extracts. He had failed to produce them though he had easy access. In the absence of any cogent evidence in regard to possession, there is no reason for this Court to interfere with the reasoning of the trial Court and the lower appellate Court merely because the appellant wants interferences to be drawn. No question of law as such arises for consideration. Therefore, there is no merit in this appeal. It is rejected. Appeal rejected.